Five Voices on Reforming the Front End of Justice

While the feds fiddle, some locals are innovating.

The Prisoner Reentry Institute of John Jay College, with support from the Laura and John Arnold Foundation, recently released two reports on national roundtables convened to explore pretrial practice, the “front door” to the criminal justice system. The college asked five of the participants — a police chief, a district attorney, a public defender, a probation officer and the head of the national umbrella group of county executives — to reflect on what they have learned about how to divert suspects from that front door without compromising public safety. These essays, provided to the Marshall Project, have been edited for length and clarity.
The Arnold Foundation is a financial supporter of The Marshall Project.

I have spent more than two decades in law enforcement in Camden, N.J., a city whose crime and poverty rates are among the highest in the nation. In 2012, we had 67 murders, a murder rate 17 times the national average. In such times of crisis, leaders often are more receptive to innovative solutions, and that’s what happened in my city. In 2013, the city, county, and state created a new, consolidated police organization at the Camden County level, and I was chosen to lead that department.

We knew that we couldn’t arrest and enforce our way out of crisis. Those tactics had been tried and had failed. We needed different strategies.

Our first step was to try to build a respectful, collaborative relationship with the community. This requires constant human contact between officers and the people in the neighborhoods they serve. For far too long, police have operated after the 911 call has been placed or after the crime has been committed.

Our officers get out of their cars, walk beats, and patrol by bicycle, engaging respectfully with citizens every day. When officers get to know community members in these ordinary situations, rather than only in response to crimes, they build greater empathy for the people they serve, and the community gains greater trust in law enforcement’s decisions and its ability to keep them safe.

As a profession, we’ve lost respect in too many places. Through policies like zero tolerance and overzealous hot spot policing, we’ve come in as a militarized force and targeted entire neighborhoods as enemies, without nuance, painting everyone with the same broad brush: Criminal. Instead, we need to focus on “hot people” rather than “hot places.” We need to identify and target with a laser-like focus those very small segments of the population that are engaging in problematic behavior.

This change in tactics requires an overhaul of agency culture. In Camden, we tell aspiring officers and recent academy graduates: If you work in this organization, you will characterize yourself more as a member of the Peace Corps than as a member of Special Forces. In our recruitment materials, you won’t find videos of high speed chases, machine guns, or lights and sirens.

But improving community relations alone won’t solve all the problems police face. We know that arrest and incarceration don’t work to solve things like mental illness or addiction, problems our officers encounter every day. Treatment is the better response. So in Camden, we are working with health care, social services, and the courts to develop a meaningful alternative to arresting and booking individuals who are clearly suffering from mental illness or under the influence of alcohol or drugs.

Camden is still a challenged city. But in the past three years, the murder rate has been cut in half and flagrant open air drug markets reduced by nearly 80 percent. Residents report an enhanced sense of security. Middle school students say they feel safer walking to school. Is there still crime? Yes, but we’re also committed to redefining and measuring success not by traditional outputs like the number of arrests made, tickets issued, or people detained. Because that’s not how the people we serve measure their safety. They measure it by how they feel and they demonstrate that by their actions: By sitting on their front steps again on a warm summer evening. By walking their streets and visiting with neighbors. By letting their children play outside.

Ultimately, policing in a democratic society is based upon the consent of the people. If police departments continue to use tactics that polarize communities against them, then we risk losing that consent and are always just one critical incident from a flashpoint.

Where the Prosecutor Thinks Court Is the Last Resort

John Chisholm, District Attorney, Milwaukee County, Wisconsin

In my nine years as the district attorney of Milwaukee County, I’ve learned that change requires a shift in the prosecutor’s mindset, away from the assembly line of charge, conviction, and prison sentence. Instead, prosecutors must consider the people before them as individuals with unique needs, histories, and motivations who require a variety of methods to change their behavior. The prosecutor must ask: What trajectory will improve public safety by decreasing the likelihood that this individual will commit new crimes? (It is important to emphasize that the same approach applies to addressing our victim’s needs and concerns in the context of an adversarial system.)

The best path for certain criminals will always be incarceration. But most of the people prosecutors see are low-level offenders who may make poor decisions because they suffer from mental illness, addiction, and immaturity. Many people charged with violent crimes are shaped by their environments: exposure to violence and instability in education, nutrition, housing, social supports, or employment. Many have themselves been victims of crime. For such people, a sentence to prison might not be the best route. In fact, jail time might be worse for that person, and society, in the long run.

In Milwaukee, we’ve expanded the number of tracks the prosecutor’s office provides for low-level offenders. Our early intervention program includes an initial eight-question, pre-arraignment assessment to identify individuals with low scores who are eligible for diversion. Those who score higher are provided a second, longer assessment that can result in charges being reduced or dismissed. We offer drug and alcohol treatment and community supervision in lieu of costly jail time. We’re finding that you can reduce crime, cut costs, and still keep the community safe, all while paying close attention to issues of racial disparity in prosecution and policing that for too long plagued our city.

But while prosecutors have influence over whether to dismiss, whether to charge cases as felonies or misdemeanors, and whether to divert, these decisions only come into play once an arrest has been made — once an individual is already within the system. My challenge to prosecutors is for us to think beyond case processing to how we can prevent crime by helping to stabilize vulnerable neighborhoods.

Stabilizing communities might seem like a social service function, but to solve the issues of crime, people from all parts of the system need to think beyond their agency roles and work together.

In Milwaukee, we’re taking a public-health approach to public safety:

We’re linking data on public health, education, public safety, and community development, then geocoding it to identify specific neighborhoods for targeted interventions with a wide array of resources.

We’re stationing community-based prosecutors in neighborhoods around the city so they can learn from the people who live there about the problems they face on a daily basis, thereby fostering a better working partnership.

We’re bringing together a commission of police, prosecutors, parole officials, and judges monthly to evaluate homicides — much in the same way that hospitals review medical errors or the federal government assesses the causes of highway deaths — in order to identify and
address the root causes of crime.

We’ve opened our files to independent researchers to increase transparency and take seriously our commitment to reducing racial disparities in prosecution.

Ultimately, I don’t feel that the job of the prosecutor is solely to get a conviction for a crime. The best outcome is to foster vital, stable neighborhoods where community members can thrive and feel safe.

The U.S. spends nearly $9 billion on the pretrial incarceration of people presumed to be innocent under the Constitution. In my work as a public defender, I saw people detained not because a court determined that they were too dangerous to release, but because they lacked financial means to post even low bond amounts or pay fines and fees.

Beyond the costs to taxpayers, research has shown that defendants held pending their day in court, even for short periods, are more likely to be convicted and to be sentenced to incarceration — and for longer periods — than those who are released. Their jobs, family ties, and finances are jeopardized. They are more likely to reoffend.

The robust participation of the public defender in the pretrial stages is one way to reduce unnecessary pretrial detention and the harms it can cause. The advocacy of defense counsel at first appearance is especially crucial, because nearly all the decisions that affect the client’s case, liberty, and outcomes are made at this hearing: whether to impose bail and in what amount, whether to release or detain the defendant pending trial, and the nature of pretrial release supervision and conditions.

Despite constitutional law requiring that defendants have counsel present at any hearing that might affect their liberty, defendants stand alone every day, their fate determined collectively by the prosecutor, pretrial services staff, and judge.

Those held pending trial must make life-altering decisions about their cases in a jail environment that is, by its very nature, coercive. Many choose to plead to low-level offenses just to get out, often waiving the right to counsel and without a full understanding of the collateral consequences of having a conviction. And those collateral consequences can be devastating, such as loss of public housing and employment ineligibility.

A study in Baltimore found that clients with defense counsel at bail hearings were two and half times more likely to be released on their own recognizance, four times more likely to have bail reduced, and twice as likely to be released on the same day as their arrest. That research is now over 15 years old and ripe for updating and expansion to other jurisdictions. New studies are needed to examine just how outcomes change when we guarantee that defendants are represented at first appearance. What is the impact of prompt appointment of counsel on pretrial detention decisions? On diversion? On bail? On pretrial supervision? On recidivism?

Right now, we do not even know how many defendants are denied counsel at first appearance; we just know that it is happening all over the country.

Of the many decision points in the criminal justice process, deciding whether to release individuals pending their trial is arguably the most critical. Even short periods of pretrial detention can have devastating effects on the lives of these presumptively innocent people.

In Maricopa County, where I serve as chief probation officer, we’ve taken a new path. As one of a handful of pilot locations selected in Arizona under new judicial rules committed to the use of evidence-based pretrial services, we’ve found success managing our docket, reducing our pretrial jail population, and releasing greater numbers of low-risk individuals back into the community with tailored conditions of supervision that protect public safety.

Our most important tool in this endeavor? The pretrial risk assessment. We use the Public Safety Assessment (PSA) developed by the Laura and John Arnold Foundation, a validated actuarial instrument shown by research to predict the two factors that our judges consider when making release decisions. First, is this defendant a flight risk? Second, does this defendant pose a threat to public safety?

The use of risk-based decision-making at the pretrial stage represents a significant change for us away from reliance on money bail. The risk assessment doesn’t replace judicial discretion, but says to the court: “This is what a person with these characteristics would typically do under this particular set of circumstances.”

This process results in recommendations ranging from release on recognizance for the lowest risk defendants to detention for those who pose too great a threat to public safety. Most people land somewhere in the middle. For many who are released, supervision can be as simple and low cost as providing texted reminders of their court dates, an easy technique that has been shown to reduce failure to appear. For those who represent a greater risk, we impose more expensive and intrusive conditions — things like electronic monitoring.

For the majority of pretrial defendants, however, we’re more concerned with the risks of over-supervision — assigning a host of costly and burdensome conditions that haven’t been proven to work. Over-supervision can actually set up a defendant to fail by interfering with the ability to work, go to school, or care for family.

In our first eight months of using the new risk-based system, we increased the number of individuals released to pretrial supervision compared to the prior year, saving an estimated 5,611 jail days at a cost avoidance to the county of nearly $660,000.

Where the Buck — $93 Billion a Year — Stops

Sallie Clark, President, National Association of Counties

Counties operate 91 percent of America’s jails, and 11.4 million individuals pass through jail each year. The nation’s 3,069 county governments invest $93 billion annually in justice and public safety services. For many counties, this is our largest single expense each year.

Approximately two-thirds of those detained in our jails at any given time are awaiting trial. These pretrial detainees are presumed innocent, yet are held in jail by a justice system that too often makes pretrial release decisions based on bail and bond schedules that tie release to the payments that many people who’ve been charged with a crime simply don’t have.

At the same time, the criminal justice system is overwhelmed, as we use it to try to solve problems it wasn’t designed to address — issues like homelessness, substance abuse, and mental illness. Often, multiple county agencies in different sectors work with the same families or individuals to address a multitude of problems — sometimes unknowingly duplicating efforts and unnecessarily spending limited county resources.

How can we change this? We need to provide decision-makers at the early stages of the criminal justice system with a wider variety of options that are focused on interagency collaboration rather than arrest and detention. Police and prosecutors need tools like citations in lieu of arrest for low-level offenders to keep people out of the system, earlier screenings to identify individuals with serious mental illness or substance abuse issues for treatment, and diversion alternatives to incarceration in appropriate cases. Judges need validated risk-assessment tools to make detention decisions based not on the amount of money bail a person can post, but instead on the actual risk he or she poses to commit new crimes or fail to appear in court pending trial. Pretrial services staff need an array of supervision tactics individually tailored to manage these risks — often things as simple and low-cost as text reminders of court dates can ensure appearance. Making this expanded menu of options available earlier in the process — especially options that bring systems together to work collaboratively — can produce outcomes that benefit all of us.

Through research-backed interagency collaboration, we can reduce crime, decrease jail populations, increase public safety, and support healthy communities by shifting taxpayer resources that would otherwise be spent on corrections to fund other services a community needs to thrive: nutrition, education, housing, employment and public health — services counties support or provide.